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Copyright Law: The (un)free use of minimalistic designed works

The Frankfurt a.M. Higher Regional Court (OLG) ruled in a judgment dated November 29, 2022, Case No. 11 U 139.21, that a minimalistic designed tubular steel table framework with diagonally attached cross struts - also known as "Eiermann 1" - is not subject to a copyright infringement by another table with the struts attached on one level in a vertical position.


In the decision presented here, the plaintiffs - as children and heirs of the famous architect and designer Egon Eiermann - asserted claims for information and damages for infringement of the copyright to a tubular steel table frame designed by their father in 1953. This minimalist table frame is a design classic known as "Eiermann 1", which has a central diagonal or oblique cross-bracing on the framework (referred to as "1953 frame"). Following on from the 1953 frame, another manufacturer produced a stylistically similar table - but with a cross brace arranged vertically on the same level to improve transportability - (referred to as "E2"). You can read more about the two table frames and the background here.

The plaintiffs have sued the defendant for information and damages due to the serial distribution of E2. After the Frankfurt a.M. Regional Court had dismissed the action as unfounded, the plaintiffs pursued their lawsuit on appeal only from the aspect of unlawful distortion (Section 14 of the Copyright Act - "UrhG") of the 1953 frame.

Reasons for decision

The Higher Regional Court dismissed the appeal as unfounded and thus confirmed the judgment of the Regional Court dismissing the action.  The court denied a distortion of the frame 1953 according to Section 14 UrhG since the table frame E2 did not change the overall intellectual and aesthetic impression of the frame 1953. Instead, E2 constituted a free use of the older work that did not infringe copyright and, therefore, a new creation.

"Eiermann 1", created in 1953, could be classified as a copyrighted work solely based on the diagonally attached cross struts. Indeed, the minimalist design limited to the essentials also characterizes the overall impression - but a style as such is not protectable.  But concerning the diagonal cross bracing court considered that the public probably knew this feature before, as shown by a picture of a 19th-century cast iron frame in the file. The court did not ultimately decide whether the 1953 frame had the necessary level of creativity for a work protected by copyright.

The court went on to say that, even if copyright in 1953 protected the frame, E2's work was not a dependent adaptation under Section 23, sentences 1 and 2 UrhG (old version) since there was no impairment of the 1953 frame in any way.  According to the Federal Court of Justice, the affirmation of a dependent adaptation depends, firstly, on the distance to the borrowed features of the older work - i.e. the objective features that characterize its peculiarity - and, secondly, on the overall impression of the design conveyed thereby.  In agreement with the District Court, the Senate only saw similarities between the 1953 frame and E2 insofar as there were two minimalist tubular steel constructions of a table frame. However, the E2 framework lacked the creative feature of the diagonally running cross bracing, which characterized the overall impression of the 1953 frame. The absence of this feature led - because of lacking a dependent design - to free use and thus a new creation, which did not infringe the copyright to the 1953 frame. In this respect, the design of E2 merely took over the minimalist style of the older work, which was not protectable.

Practical advice

The judgment of the OLG Frankfurt a.M. made the decision on the existence of a copyright infringement much more manageable in cases focusing on minimalist works:

The legal practitioner receives clear guidelines to determine when the challenged "replica" (still) constitutes a dependent adaptation and thus a copyright infringement and when the line to a new, independent creation is crossed by sufficient distance to the older work. Essentially, the following applies here:

  • The style of the original work as such is not protectable.  Therefore, it is not decisive that the challenged design reflects this style.
  • To justify a copyright infringement by dependent adaptation, one must show in concrete terms that precisely those features of the older work were adopted which are characteristic of its overall impression.

This case law should not only provide an appropriate balance of interests between the rights holders and the producers of the challenged designs. It is also in line with previous case law on Section 23 (1) UrhG concerning the distinction between dependent adaptation and the existence of a new creation. For example, the Federal Court of Justice (judgment of March 11, 1993, file no. I ZR 264/91) has already focused on whether the older work is still recognizable or whether the borrowed features fade in the attached design. The latter speaks for a maintained sufficient distance and a new creation.  To draw the line here, the Federal Court of Justice has evaluated the features borrowed from the older work and the deviations in the new design by an overall assessment.

The present decision of the Higher Regional Court of Frankfurt a.M. is based on the same distinction between restricted and unrestricted use, which is decisive for the existence of a copyright infringement - and it further substantiates this for cases in which minimalist designed creations are on focus.

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